Sri Lars Thoren vs State Of Karnataka
2022 Latest Caselaw 10911 Kant

      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 19TH DAY OF JULY, 2022

                         BEFORE

         THE HON'BLE MR. JUSTICE C.M. POONACHA

         WRIT PETITION No.3792 OF 2014 (GM-RES)

BETWEEN

1 . SRI LARS THOREN
    S/O EINAR THOREN,
    AGED ABOUT 63 YEARS,
    MANAGING DIRECTOR,
    M/S VOLVO INDIA PRIVATE LIMITED,
    NO.7 & 8, I PHASE, PEENYA
    INDUSTRIAL AREA, TUMKUR ROAD,
    BANGALORE-560058.

2 . SRI.B .R. INDUSHEKAR
    S/O H.M.RAJAN,
    AGED ABOUT 42 YEARS,
    MANAGER,
    M/S VOLVO INDIA PRIVATE LIMITED,
    NO.7 & 8, I PHASE, PEENYA
    INDUSTRIAL AREA, TUMKUR ROAD,
    BANGALORE-560058.
                                          ...PETITIONERS
(BY SRI K DIWAKARA, SENIOR ADVOCATE FOR
    SRI HITESH GOWDA B J, ADVOCATE)

AND


STATE OF KARNATAKA
BY SENIOR ASSISTANT,
DIRECTOR OF FACTORIES, DIVISION-7,
KARMIKARA BHAVANA,
BANNERUGHATTA ROAD,
BANGALORE-560029.
                             2




                                            ...RESPONDENT
(BY SRI SHIVANANDA D. S, AGA)


     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
AND SET ASIDE THE ORDER DTD.12.7.2013 DIRECTING
ISSUANCE OF THE PROCESS BY WAY OF SUMMONS FOR THE
OFFENCE PUNISHABLE UNDER SEC.92 OF THE FACTORIES ACT,
1948 IN C.C.NO.10784/2013 PENDING ON THE FILE OF
LEARNED VI, ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BANGALORE FOUND AT ANNEX-A AGAINST THE PETITIONERS
AND ETC.

     THIS PETITION HAVING BEEN HEARD AND RESERVED
FOR   ORDERS    ON   08.07.2022, COMING  ON   FOR
'PRONOUNCEMENT OF ORDER' THIS DAY, THE COURT MADE
THE FOLLOWING:-

                         ORDER

The above writ petition is filed challenging the order

dated 12.07.2013 passed in C.C. No.10784/2013 by the

VII Addl. Chief Metropolitan Magistrate, Bengaluru (for

short 'ACMM').

2. It is the case of the Petitioners that M/s. Volvo

India Private Limited (hereinafter referred to as 'the

company') is involved in the manufacturing activity of

making excavators and construction of road machineries;

that on 19.4.2013, an accident occurred in the factory, as

a result of which, one Sri Sampath, the company trainee

sustained injuries and he was shifted to the hospital. He

was pronounced dead when he was brought to the

hospital. A complaint was lodged in Peenya Police Station

under Section 304(A) of IPC in Crime No.270/2013 and a

charge sheet was filed against the second Petitioner and

four others in CC.No.15098/2013.

3. The Respondent lodged a complaint against the

Petitioners under Section 92 of the Factories Act, 1948 (for

short 'the Act') for contravention of Rule 84 of the

Karnataka Factories Rules, 1969 (for short 'the Rules') and

Section 7A(2)I of the Act.

4. The learned Magistrate, on receipt of the

complaint, vide order dated 12.07.2013 took cognizance of

the same under Section 92 of the Act, dispensed the

recording of Sworn Statement and ordered for registration

as a criminal case, which was numbered as

C.C.No.10784/2013. Hence, the present writ petition is

filed seeking for quashing of the said order dated

12.07.2013.

3. Sri K. Diwakar, learned Senior Counsel for the

Petitioners put forth the following contentions:

(a) that, due to the accident in question, criminal proceedings have also been initiated in C.C. No.15098/2013 which have ended in acquittal. Initiation of the proceedings in C.C. No.10784/2013 would amount to prosecuting the Petitioners twice.

(b) that, the ingredients of both Section 304A of the IPC and Section 92 of the Act is the same i.e. negligence.

(c) that, there was no mens rea on the part of the Petitioners for the commission of the offence.

(d) that, adequate compensation has already been given by the company to the family members of the deceased and that the Petitioners and other officials of the company have suffered considerably due to the incident dated 19.4.2013 including

criminal proceedings in CC No.15098/2013 under Section 304(A) OF IPC and hence, another round of prosecution in C.C. No.10784/2013 is not warranted.

(e) the Petitioners having been prosecuted for the offence under Section 304A of IPC, it is not open for the proceedings in C.C No.10784/2013 also to be proceeded with.

(f) that, the investigation has been carried out in C.C. No.15098/2013 by the State and hence, the present criminal case has also been initiated by authorities of the State and hence, liable to be quashed.

4. Learned Senior Counsel relies on the following

judgments:

(a) Manoharan and others Vs. State of Tamil Nadu1

(b) Sri Sridhar Punachithaya and others Vs. State of Karnataka and another2

5. Contending as aforementioned and placing

reliance on the above judgments, the learned Senior

Counsel sought for quashing of the order dated

12.07.2013 passed in CC.No.10784/2013.

6. Learned AGA., vehemently contended that the

prosecution lodged in C.C. No.10784/2013 is just and

proper and prays for dismissal of the writ petition. In

support of his contentions, learned AGA., relied on the

following decisions:

(a) Ejaj Ahmad Vs. The State of Jharkhand and another3

(b) Mr. Rana Ajay Kumar Singh & another Vs. State of Karnataka.4

(c) Ashwini Kumar Singh and another Vs. State of Jharkhand 5

(d) State of Gujarat Vs. Kensara Manilal Bhikhalal 6

2012(@) MWN (Cr.) 335

High Court of Karnataka in Criminal Petition No.2408/2014 (D.D. 12.11.2014)

In the High Court of Jharkhand at Ranchi in Cr.M.P. NO.911/2007 (D.D. 03.09.2009)

In the High Court Karnataka, Dharwad Bench in Crl.P. No..100194/2015 (DD 18.2.2016)

2007 LLR 866

(1964) 8 SCR 656

7. Having regard to the contentions put forth by

the parties the question that falls for consideration is,

'Whether the proceedings in C.C. No.10784/2013 is liable

to be quashed?'

8. Before appreciating the various factual

aspects, it is necessary to refer to the relevant statutory

provisions. Section 304(A) of the IPC deals with

negligence and prescribes a punishment for a term which

may extend to 2 years or fine or with both.

9. Section 7A of the Act deals with the General

duties of the occupier. Section 92 provides for

contravention of any of the provisions of the Act or Rules

and provides for punishment, which may extend to two

years or with fine which may extend to Rs.1.00 lakh or

with both. Rule 84 of the Rules stipulates as follows:

"84. Methods of work.- No process of work shall be carried on in any factory in such a manner as to cause risk of bodily injury."

10. In the complaint dated 08.07.2013 lodged by

the Respondent in CC.No.10784/2013, after noticing the

various facts dealing with the matter, the following have

been mentioned as the contraventions:

"Contraventions:

1. Thus, by carrying out the process of work in such a manner as to cause risk of bodily injury and without ensuring the safety of the worker at work, as explained above, the Occupier and the Manager of the factory have contravened the provision of Rule 84 of the Karnataka Factories Rules, 1969.

2. From enquiries made and documents obtained, it is learnt that, Sri.V.Sampath, deceased, was found working/employed where the hazard prevailed, without proper instruction, information and supervision which have also contributed towards the said fatal accident. There by, the Occupier of the factory has contravened the provision of section 7A(2) I of the Factories Act, 1948."

11. In CC.No.15098/2013 which was filed against

the Petitioner No.2 and 4 others for the offences under

Section 304(A) of IPC, during the pendency of the present

Writ Petition, the XLVI ACMM, Bengaluru, vide its judgment

dated 22.03.2017 has acquitted all the accused persons. A

copy of the said judgment has been produced by the

Petitioners along with IA dated 18.8.2017. In the said

judgment, the ACMM Court has framed the following point

for consideration:

"1)Whether the prosecution proves beyond all reasonable doubt that the son of the PW 1 namely Sampath.V was working as Assistant at Volvo company situated at I stage, Peenya Industrial area within the limits of Peenya Police Station. That on 19.4.2013 he was appointed by the accused to work at Assembly system of the company. When he was working since the accused have not taken safety measure, the main structure of the machine fallen on the head of Sampath.V and he sustained grievous injuries and succumbed to the injuries. Since accused have not provided safety measure to work, the said Sampath.V is dead and because of the negligent act of the accused, the deceased is dead & thereby committed an offence punishable u/s.380 of IPC?"

12. The learned Magistrate in the course of the

judgment has held as follows:

"10. ............ When evidence of PW 1 is heresay evidence and PW2 and 3 who are the eye witnesses does not support the prosecution case, I feel there is no evidence on record to come to a conclusion that deceased Sampath was dead while working in a factory due to the negligent act of the accused. When there is no material evidence it cannot be held that the accused have committed an

offence as alleged by the prosecution. In view of this, I am of the opinion that the prosecution has utterly failed to prove the guilt of the accused beyond all reasonable doubt. Hence, I answered this point in the Negative."

13. The Hon'ble Supreme Court in the case of

Sangeetaben Mahendrabhai Patel v. State of Gujarat7

after a detailed analysis as to the application of the

doctrine of double jeopardy has held as follows:

"33. In view of the above, the law is well settled that in order to attract the provisions of Article 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 CrPC or Section 71 IPC or Section 26 of the General Clauses Act, the ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not the identity of the allegations but the identity of the ingredients of the offence. Motive for committing the offence cannot be termed as the ingredients of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves an acquittal of the latter charge."

14. In the case of Sri Sridhar Punachithaya and

others v. State of Karnataka and another8, and in the

case of Mr.Rana Ajay Kumar Singh and another v.

(2012) 7 SCC 621

State of Karnataka9, this Court has quashed the criminal

proceedings under Section 304(A) of IPC since in the

proceedings initiated for the offences punishable under the

Factories Act, the accused persons had pleaded guilty and

had accepted the punishment. In the said two judgments,

this Court has also noticed that the Factories Act being a

Special law and the IPC being a General law, once the

accused persons tried under the Special law, the question

of trying same accused persons under General law does

not arise.

15. In the case of Manoharan and others v.

State of Tamil Nadu,10 the learned Single Judge of the

Madras High Court has quashed the proceedings under

Section 304(A) of IPC since the accused were already

prosecuted for violation under the Factories Act.

Crl.P.No.2408/2014, DD 12.11.2014

Crl.P.No.100194/2015, DD 18.02.2016

2012(2) MWN (Cr.)335

16. The settled position of law as noticed above is

that, the ingredients of both the offences are required to

be the same.

17. It is forthcoming from what is noticed from the

allegations made in the complaint filed by the Respondent

and the question that fell for consideration before the

Criminal Court that, in both the proceedings the question

that arose for consideration before the learned Magistrate

and the question that arose for consideration in the

complaint filed by the Respondent, are with regard to the

negligence of the accused persons. The punishment

contemplated under both the statues is imprisonment for a

period of two years or with fine or with both. The

proceedings under IPC already having been initiated in

respect of the said incident in question against the accused

persons and the prosecution having failed to furnish

sufficient evidence for the purpose of convicting the

accused, the question of initiating an other proceedings

and once again attempting to prosecute the accused on

the same set of facts in respect of the offences, whose

essential ingredient being the same, i.e., negligence,

wherein, in the prosecution already initiated, no evidence

could be produced to justify the charge resulting in

acquitting the accused persons, the question of initiating

another proceedings as is sought to be done in

CC.No.10784/2013, does not arise.

18. Accordingly, the Writ Petition is allowed. The

order dated 12.07.2013 passed in CC.No.10784/2013 on

the file of the learned VII Additional Chief Metropolitan

Magistrate, Bangalore, against the Petitioners, is hereby

quashed.

No costs.

Sd/-

JUDGE

nd/BS